A judge, who has obtained a court order permitting him/her to reveal certain
information in order to seek guidance from the Committee, asks whether he/she may
continue to preside in a particular criminal case. It appears the District Attorney
disagreed with the judge’s pretrial rulings on a particular issue, and then collaterally
attacked the judge’s pretrial rulings in another forum by seeking to challenge and/or
investigate the judge’s general procedures in chambers with respect to such rulings.
After a delay, the District Attorney moved to disqualify the judge in that case,
because (1) there was unspecified “pending litigation” between the judge and the
District Attorney and (2) the judge purportedly had a “personal interest” in ensuring
that the defendant was acquitted in order to avoid “further scrutiny and criticism” of
the judge’s pretrial decisions through the appellate process, which could only occur if
there was a conviction followed by an appeal. The inquiring judge has “absolutely no
reservations” about being able to remain fair and impartial in the case.

A judge must respect and comply with the law (see 22 NYCRR 100.2[A]) and
must not be swayed by “public clamor or fear of criticism” (22 NYCRR 100.3[B][1]). A
judge must disqualify him/herself where specifically required by rule or statute (see
Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]), including when the judge has a
personal bias or prejudice regarding a party (see 22 NYCRR 100.3[E][1][a][i]), or
knows that he/she has an economic or other interest that could be substantially
affected by the proceeding (see 22 NYCRR 100.3[E][1][c], [d][iii]). Where no specific
provision expressly disqualifies the judge, the judge still must consider whether
his/her impartiality could nonetheless “reasonably be questioned” (22 NYCRR
100.3[E][1]). Where disqualification is not mandated under these objective tests,
however, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403,
405 [1987]), and therefore may preside, unless he/she doubts his/her own
impartiality in a specific matter (see Opinion 11-64).

The Committee has issued many opinions concerning a judge’s obligations
when disappointed litigants or attorneys mount collateral attacks on the judge and/or
the judge’s judicial decisions, such as federal lawsuits, Article 78 proceedings,
complaints to the Commission on Judicial Conduct or other government agencies, and
bogus multi-million dollar liens on the judge’s real property (see e.g. Opinions 14-58;
13-75; 13-41; 12-94; 12-07; 10-38; 00-10; 98-69; 97-102; 94-46). Even where the
attorney or litigant sues the judge directly, “where the cause of action is directed to
the judge's institutional or official role, and ‘there does not appear to be any
personal or direct financial or other economic interest on the part of the judge in the
outcome of [the] lawsuit,’ the Committee has advised that disqualification is
discretionary, based solely on the judge’s conscience” (Opinion 12-94 [citations
omitted]). Conversely, a judge who is pursuing an expungement proceeding and “all
available civil remedies” in connection with a criminal defendant’s vexatious lien
filing may continue to preside in the criminal case, provided the judge determines
he/she can be fair and impartial, a matter confined solely to the conscience of the
particular judge (Opinion 14-58). Similarly, the Committee has advised that a judge
who can remain fair and impartial is not disqualified merely because an attorney or
litigant has filed a formal complaint against the judge or sought an official
investigation (see e.g. Opinions 10-38; 97-102; 94-46). Indeed, to help prevent
unnecessary disruption of judicial proceedings based on purely tactical accusations of
judicial misconduct by attorneys or litigants, the trigger for mandatory
disqualification is when the Commission on Judicial Conduct charges the judge with
misconduct in a formal written complaint (see Opinions 10-38; 02-96; 97-102).

In the present inquiry, the District Attorney disagreed with the judge’s pretrial
rulings and launched a collateral attack on these rulings. Although a prosecutor’s
scope of action for such collateral attacks may potentially be broader than that of
other attorneys or litigants, the Committee believes a prosecutor’s disagreement with
a judge’s pretrial rulings does not, without more, suggest any ethical impropriety in
the judge’s attempts to follow applicable law when making such decisions (see e.g.
Opinion 14-34). Accordingly, the fact that the District Attorney’s collateral attack
has resulted in “pending litigation” between the judge and the District Attorney, as a
direct result of the judge’s official judicial conduct, does not require the judge’s
disqualification (seegenerally Opinions 14-58; 12-94; 12-07).

The District Attorney’s claim that the inquiring judge would actually acquit a
criminal defendant to avoid possible appellate review of the judge’s pretrial rulings is
sheer speculation and does not identify any cognizable “interest” in the proceeding
before the judge. Indeed, a purported “interest” in not being reversed on appeal
could arguably underlie every decision of a nisi prius court; this is not, and cannot
be, a prohibited “interest” that requires a judge’s disqualification.

As the Committee can discern no reasonable, objective basis to question the
judge’s ability under the facts presented, resolution of the recusal motion is confined
solely to the inquiring judge’s discretion (see People v Moreno, 70 NY2d 403 [1987]).
As the judge has concluded he/she can be fair and impartial, the judge may preside.